Prentice J. Willis and Harvey J. Travis at the time of the death of Travis, in 1883, were partners in business and the owners as tenants in common of the premises described in the complaint, subject to two mortgages. After the death of Travis, Willis continued the business as surviving partner and was in possession of the premises until April, 1886, when, by a lease under seal executed by him, in which he described himself “ as surviving partner of the late firm of ‘ Travis & Willis,’ ” he leased the premises to the defendant for the term of one year from that date, with the privilege to the defendant of 'a renewal of the lease for another year if .the premises should not be sold.
It was understood between the parties at the time of the execution of the lease that Mary J. Travis, as devisee and executor of the will of Prentice J. Willis, had succeeded to the title of Prentice J. Willis in the premises, but that she did not object to the lease, and such was the fact.
The defendant entered into possession of the demised premises and occupied them for one year and paid the rent to Prentice J. Willis. At the end of the year the defendant requested a renewal of the lease for another year, but Prentice J. Willis declined giving it, alleging that his uncle, who held one of the mortgages, was about to foreclose, and it would be of no use to renew the lease. Nevertheless the defendant continued in possession and has ever since retained it.
On the 1st day of May, 1888, Prentice J. Willis conveyed the said premises to the plaintiff by quitclaim deed, together with the reversion, remainder, rents, issues and profits thereof. After the plaintiff’s purchase of the premises he bought in the same upon the foreclosure sale of the two outstanding mortgages, but these mortgages did not cover all the premises. The result was that, at the *135time of the commencement of this action, he was the owner of seven-eighths of the main premises, and of three-fourths of the wing thereto.
On June 13, 1887, Mary J. Travis conveyed to the defendant her interest in the premises, subject to the above mortgages. The defendant, therefore, at the commencement of the action, had the legal title to one-eighth of the main part and one-fourth of the wing.
The defendant, knowing just what title Prentice J. Willis had, nevertheless took the lease from him and obtained possession, and has held it ever since. He thereby recognized the title of Willis as it, in fact, existed, and agreed to accept it as a good title. He has never been evicted by title paramount; he has not by purchase, under a judgment sale, acquired his landlord’s title, or any title adjudged against the landlord to be superior to his, nor is he able to show that, being liable to eviction, he has abandoned the premises or attorned to the holder of a paramount title. All he has done is to buy in the strand or fraction of title outstanding in Mary J. ■ Travis, a fraction which he knew to be outstanding when he took • the lease. He took the lease subject to that outstanding strand of title, and, therefore, cannot assert it to the prejudice of his landlords, certainly not until he has been evicted or compelled to attorn to its owner to escape eviction. (Tilyou v. Reynolds, 108 N. Y. 558.)
His possession of the premises for the second year after the expiration of the first, will be presumed to be under a renewal, although not formally executed, and, after the second year, it will be presumed to continue under the lease, in the absence of any contract to the contrary. (Whiting v. Edmunds. 94 N. Y. 309, 314; Code Civ Proc. § 373.)
Prentice J. Willis conveyed his title in the premises, together with the remainder ajid rents to the plaintiff. There were two outstanding mortgages which were subsequently foreclosed, and, upon the foreclosure sales, the plaintiff purchased the premises. If a stranger had purchased the premises he might have claimed that he held by title paramount to that of Prentice J. Willis, and the defendant might have recognized that title and abandoned the premises or attorned to the owner of the paramount title. (Jach*136son v. Rowland, 6 Wend. 670.) But the plaintiff, by becoming the grantee of the mortgagees as well as of Prentice J. Willis, could not hold the mortgage title in hostility to the title which he had obtained from Willis, but could hold it in its support. The first was not extinguished. Indeed, the deed from Willis covered a parcel not embraced in the mortgages.
The defendant has simply purchased, during his possession under the lease, the outstanding title of Mary J. Travis in an undivided fraction of the premises. This he had a right to do, but his possession, nevertheless, continued to be under his landlord, and not under such newly acquired title. (Whiting v. Edmunds, supra.) Before he could assert title against his landlord, he must surrender to him the possession which he acquired under the lease, or do some act equivalent to it. (Id.)
The effect of defendant’s possession under the lease from Willis is to establish that, as between Willis and defendant, Willis had title. The plaintiff, as grantee of Willis, had acquired that title, and as the defendant’s right to possession under the lease has expired, the plaintiff is entitled to possession.
The action is not for rent, and it is not material whether the relation of landlord and tenant ever existed between the plaintiff and defendant.
The judgment should be reversed, new trial granted, costs to abide the event.
Judgment affirmed, with costs.